Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/846

 832 V. BENCH AND BAR among the highest models of judicial exposition. He was a man of broad views. The basis of his very able opinion in the great case of Allen v. Flood, (1808) A. C. 1, is an illustration : " I do not doubt that every one has a right to pursue his trade or employment without ' molestation ' or itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another's trade or em- ployment, and needs to be excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man's right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is in law a right of pre- cisely the same nature, and entitled to just the same protec- tion, as a man's right to trade or work. They are but ex- amples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or de- ceive or commit any other of the wrongs known to the law of which speech may be the medium. Unless he is thus shown to have abused this right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling? " Herschell believed that it was a judge's duty to interpret and administer the law, not to make it. He was sturdily averse to the process of refinement by means of which par- ticular cases were withdrawn from the application of general rules. A characteristic illustration may be found in his opinion in the celebrated case of Russell v. Russell, (1897) A. C. 460, where it was sought to extend the legal doctrine with respect to cruelty in matrimonial relations so as to cover the facts of a particular case. " The only criterion of cruelty which I have heard suggested as warranting a judgment for the appellant. Is whether the discharge of the duties of married life has become impossible owing to the
 * obstruction,' if those terms are used to imply some act in